01a00566
04-19-2000
Doretha Wiley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W Areas), Agency.
Doretha Wiley, )
Complainant, )
) Appeal No. 01A00566
v. ) Agency No. 4H-390-0051-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W Areas), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405). Complainant alleged that she was discriminated
against on the bases of race (Black), sex (female), reprisal (prior EEO
activity), and age (5/3/48), when, on December 4, 1996, she was denied
overtime.
The record reveals that during the relevant time, complainant was employed
as a Full Time Regular Distribution/Window Clerk, at the agency's Madison,
Mississippi facility. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on April 29, 1997.<2> At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an
EEOC Administrative Judge or alternatively, to receive a final decision
by the agency. Complainant initially requested a hearing, but later
withdrew that request and opted for a final agency decision.
On September 23, 1999, the agency issued a final decision finding no
discrimination. Specifically, the agency found complainant failed to
establish a prima facie case because she failed to establish that she
received less overtime than similarly situated individuals. Assuming,
arguendo, that complainant established an inference of discrimination, the
agency found complainant failed to establish that the agency's reasons for
its actions were a pretext for discrimination. Specifically, the agency
found complainant was not provided overtime on the day in question because
she did not work the window on that day. The agency noted, however,
that complainant was provided two hours of overtime the prior day.
On appeal, complainant contends that the agency's reasons for its actions
are a pretext for discrimination. She cites individuals who have been
afforded more overtime than she, and provides supporting documentation.
She disputes the agency's contention that complainant is a �slow� worker,
citing her receipt of the �Can Do� Award. The agency requests that we
affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411,
U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979);
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), the Commission agrees
with the agency that complainant failed to establish a prima facie case of
race, sex or age discrimination because she failed to identify similarly
situated individuals not in her protected classes, who were treated more
favorably than she was. In reaching this conclusion, we note that the
majority of individuals cited by complainant as comparative employees
were Part Time Flexible employees, whereas complainant is a Full Time
Regular employee. The record reveals that Part Time Flexible empoyees
work a flexible schedule that varies between six or seven days per week,
whereas complainant works a regular schedule of 40 hours per week.
According to the agency, Part Time Flexible employees are often used
in the hopes that employees can be sent home to avoid overtime over the
regular 40 hour work week. Although complainant need not rely solely on
comparative evidence, see O'Connor v. Consolidated Coin Caterers Corp.,
116 S.Ct. 1307 (1996), we find no other evidence in the record that
would establish an inference of race, sex or age discrimination.
As for complainant's reprisal claim, we find complainant does raise an
inference of discrimination in that one of the responsible officials was
aware of complainant's prior EEO activity when overtime was assigned on
the day in question.
However, the Commission further finds that complainant failed to
present evidence that proves more likely than not, the agency's
articulated reasons for its actions were a pretext for discrimination.
Complainant failed to produce any evidence that she worked the window
on the day in question, despite the agency's contention that she did
not, and thus, was not offered overtime. In reaching this conclusion,
we note that the record reveals complainant was afforded overtime
the day prior to the day in question. The record also reveals that,
during a three month period, complainant worked more overtime than any
of the Full Time Regular employees she cited as comparative employees.
Complainant failed to produce persuasive evidence that she was denied
overtime for discriminatory reasons.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS
THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If
you file a request to reconsider and also file a civil action, filing
a civil action will terminate the administrative processing of your
complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
April 19, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
1 On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The instant complaint was initially framed as one that alleged
discrimination when complainant was told her position would be abolished.
The agency issued a final decision that dismissed the complaint for
failure to state a claim. On appeal, the Office of Federal Operations
affirmed the dismissal. See Wiley v. USPS, EEOC Appeal No. 0197554 (April
8, 1998). Thereafter, complainant filed a Request for Reconsideration.
Complainant's Request was granted in light of the agency's failure to
address complainant's allegation that she was denied overtime. See,
Wiley v. USPS, EEOC Request 05980715 (October 8, 1998). Therein, we
remanded the complainant's allegations to the agency for investigation.